MATTER : Application for a writ of habeas corpus ad subjiciendum pursuant to sections 16 & 17 of the Prisons Act 1981

Application for bail pursuant to Order 57 rule 4 of the Supreme Court Rules 1971 (WA)

DIRECTOR GENERAL DEPARTMENT OF JUSTICE WESTERN AUSTRALIA

HONOURABLE JAMES MCGINTY ATTORNEY GENERAL MEMBER OF THE LEGISLATIVE ASSEMBLY

Habeas Corpus - Habeas corpus ad subjiciendum - Whether detention unlawful - Writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law

Prisons Act 1981, s 16, s 17

Sentence Administration Act 2003, s 8

First Respondent : Ms J C Pritchard & Ms S T Gorman

Second Respondent : Ms J C Pritchard & Ms S T Gorman

Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416

Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478

Rogers v The Queen (1994) 181 CLR 251

Williams, In re [1934] HCA 48; (1934) 51 CLR 545

Garvey v The Queen [2003] WASCA 10

Marotta v The Queen [1999] HCA 4; (1999) 160 ALR 525

R v Canning Vale Prison Superintendent; Ex parte Landry, unreported; FCt SCt of WA; Library No 7453; 23 December 1988

R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222

1 LE MIERE J: Before me is an application by Mr Laurance Anthony Hooker for a writ of habeas corpus addressed to the Director General, Department of Justice, Western Australia. The applicant has joined the Attorney-General, the Honourable James McGinty, as a second respondent to the application.

2 The application is supported by an affidavit sworn by Mr Hooker on 2 August 2005 which discloses that he is currently detained in custody at Acacia Prison. By arrangement between the authorities, Mr Hooker appeared before the court by video-link and represented himself. The Director General of the Department of Justice and the Attorney-General appeared by counsel.

3 The background to this application is broadly as follows. On 10 May 1988 the applicant was sentenced in the District Court of Western Australia to a term of imprisonment of 2 years and 11 months for the offence of breaking and entering. On 29 September 1988 the applicant escaped from Karnet Prison Farm. On 3 October 1988 at Perth a Justice of the Peace issued a warrant at first instance to apprehend the applicant and bring him before justices to answer the charge that he did escape legal custody. That warrant is described as central warrant no 19958 of 88.

4 In February 1989 the applicant was arrested in New South Wales. The applicant says that on 20 February 1990 the Magistrate, before whom he was brought in New South Wales, found that the warrant by which he had been arrested was defective in that it was not endorsed in the manner required by the Service and Execution of Process Act 1901 and ordered that the applicant be released.

5 The applicant was again arrested in New South Wales on 3 March 1990. He was brought before Judge Solomon in the District Court. The applicant says Judge Solomon ordered that if a valid warrant was not produced, he would release the applicant. Central warrant no 19958 of 88 was produced. The Judge held that the warrant was defective and ordered that the applicant be released.

6 In May 2004 the applicant was living in Queensland. After some earlier contact with police officers he was arrested and brought before the court on 16 June 2004. He presented papers concerning his previous arrests and release in New South Wales. Submissions were made and he was extradited to Western Australia. The applicant was returned to Hakea Prison on 21 June 2004. On 20 January 2005 the applicant was sentenced by the Court of Petty Sessions in Perth to a term of imprisonment for the offence of escaping legal custody.

7 The applicant carries an initial burden of showing a prima facie case that his detention is unlawful, see Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 at 418 per Malcolm CJ. The basis upon which the application was presented is stated in Mr Hooker's affidavit and orally as being that the warrant pursuant to which he was arrested and extradited from Queensland and returned to prison in Western Australia in June 2004 is, and has been held by another court to be, defective and invalid.

8 As I read Mr Hooker's affidavit and as he advanced in the course of his oral argument the attack which he makes upon the lawfulness of his detention in custody is directed to the circumstances of his arrest in Queensland and his extradition to Western Australia. Mr Hooker claims that his arrest was illegal for two reasons. First, the arresting police did not have a valid warrant at the time of his arrest and the whole process of arrest and extradition had constituted an abuse of process in that there had been a deliberate and unjustifiable reliance by the second respondent on an invalid warrant. That matter described by the applicant as an abuse of process is the second ground on which the matter is put.

9 The respondents have filed an affidavit by John Charles Simon Walker sworn on 14 September 2005. Mr Walker swore a subsequent affidavit on 15 September 2005 in which he said there were a number of errors in his affidavit of 14 September and he corrected those errors. Mr Walker deposes in essence as follows. Mr Hooker is not at present held in custody under the authority of any warrant for his arrest. He has been and is held in custody pursuant to a certificate of the clerk of arraigns issued in the District Court of Western Australia dated 10 May 1988 in respect of the applicant which indicates that the applicant was sentenced to a term of imprisonment of 2 years 11 months for the offence of break and enter and a warrant of commitment issued in the Court of Petty Sessions in Perth dated 20 January 2005 in respect of the applicant which states that the applicant was sentenced to a term of imprisonment of 3 months cumulative for the offence of escaping legal custody. The applicant's claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest in, and extradition from, Queensland was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that the applicant is lawfully detained pursuant to the certificate of the clerk of arraigns in District Court of Western Australia dated 10 May 1988 and the warrant of commitment issued in the Court of Petty Sessions in Perth dated 20 January 2005.

10 The applicant's detention pursuant to those instruments is lawful for the reasons submitted by the respondents in pars 6 to 14 of the respondents' outline of submissions those submissions are as follows:

"6. On 10 May 1988 the Applicant was convicted, upon a plea of guilty, of breaking and entering and sentenced to a term of imprisonment of two years and 11 months. The Applicant was made eligible for parole.

7. At the time of sentencing, the Offenders Community Corrections Act 1963 applied to the Applicant. Pursuant to that Act, the Applicant's earliest date of release was calculated as being 19 April 1990, being two third [sic] of his sentence. (Affidavit of John Walker, paragraph 5).

8. On 29 September 1988 the Applicant escaped from Karnet Prison Farm. (Affidavit of John Walker, paragraph 5).

9. The Applicant was returned to Hakea Prison on 21 June 2004. He had been at large for 5744 days. (Affidavit of John Walker, paragraph 6).

10. Pursuant to section 8(1) of the Sentence Administration Act 2003 ('the SAA') the Applicant's term of imprisonment did not elapse while he was at large, having escaped from lawful custody.

11. Section 8(2) of the SAA provides that:

'A prisoner who is returned to lawful custody after having escaped from it while serving a fixed term, must serve -

(a) the part of the term he or she had yet to serve at the time of escaping; plus

(b) one third of the lesser of -

(i) the period during which he or she was absent from lawful custody; or

(ii) the period beginning on the date of escape and ending on the date when, but for the escape, the fixed term would have ended,

in addition to any term imposed for escaping lawful custody'.

12. Upon his return to custody, the Applicant's remaining term of imprisonment was recalculated as being 567 days (being the part of the term he had to serve at the time of his escape) plus a penalty of one third of the period beginning on the date of escape and ending on the date when, but for the escape, the fixed term would have ended (ie. One third of 567, being 189 days). The total remaining term of imprisonment was 756 days, giving an earliest eligibility date for release of 16 November 2006. (Affidavit of John Walker, paragraph 6).

13. On 20 January 2005 the Applicant was convicted of escaping legal custody and sentenced to a term of imprisonment of 3 months to be served cumulatively. The Applicant is not eligible for parole in relation to this offence. The Applicant's earliest eligibility date for release in relation to the escape legal custody offence is 16 February 2006. (Affidavit of John Walker, paragraph 7).

14. The Applicant is currently serving his sentence imposed on 10 May 1988 in relation to the breaking and entering offences. The Applicant remains lawfully in custody until 16 February 2006."

11 Neither the order of the District Court or the order of the Court of Petty Sessions has subsequently been set aside in appeal proceedings.

12 The applicant has submitted to me today that he was brought into his present custody unlawfully. The applicant says he admits that he is in lawful custody now but the instrument that brought him here was invalid and its use was an abuse of process. The applicant has referred me to the decision of the High Court in Rogers v The Queen (1994) 181 CLR 251 and in particular to passages in the joint judgment of Deane and Gaudron JJ at 273 and 274. That case concerned the principles of res judicata and issue estoppel and their application to the admission of evidence at a subsequent trial of an accused at a second trial.

13 Those principles of res judicata and issue estoppel, if they have any application, apply only to a determination of the validity of the central warrant and the applicant's arrest in New South Wales pursuant to that warrant and to the decision of the court in New South Wales in relation to those matters. Those principles do not apply to the lawfulness or otherwise of the applicant's present custody at Acacia Prison.

14 The respondents submit that the applicant is in effect, or in part, asking this court to undertake a judicial review of the decision of the Queensland Magistrates Court which ordered the extradition of the applicant to Western Australia. The respondents submit, and I accept, that this court does not have jurisdiction to undertake judicial review of the decision of the Magistrates Court in Queensland.

15 In any event, the duty of this Court, as presently constituted, is to determine whether the applicant is presently being held unlawfully in custody or whether there are arguable grounds for the issue of a writ or referring the matter to the Court of Appeal for a hearing as to whether or not to issue a writ of habeas corpus. The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not however available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity.

16 In Williams, In re [1934] HCA 48; (1934) 51 CLR 545 Starke J said at 548 that there were two reasons in that case why a writ of habeas corpus would not issue. The second reason was:

"... that a writ of habeas corpus does not lie where a person is in execution on a criminal charge, after judgment in due course of law."

18 The applicant has submitted to me that the matter of the lawfulness of the central warrant and his arrest pursuant to it and extradition to Western Australia pursuant to it was determined by the court in New South Wales in 1990. The applicant submitted to me that following that he lived for some 15 years in the expectation that the matter had been resolved.

19 My duty is to determine this application for a writ of habeas corpus, according to the law. In my view, the law is quite clear. It is, as I have said, by reference to the decision of the High Court in Williams In re (supra), that a writ of habeas corpus does not lie where the applicant is in custody pursuant to a judgment in due course of law which has not been shown to be unlawful or indeed challenged.

20 A more direct authority and one which, in my view, is on all-fours to this case was the decision of Deane J in the High Court in Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478. In that case Mr Eastman applied for a writ of habeas corpus addressed to the police officer in charge of the cells, ACT Supreme Court. The application by Mr Eastman was supported by an affidavit sworn by him.

"As I read Mr Eastman's affidavit and as he made clear in the course of his oral argument, the attack which he wishes to launch upon the lawfulness of his detention in custody is directed to the circumstances of his arrest by officers of the Australian Federal Police on 29 July 1994. He has orally informed me that, at the time of that arrest, he was on bail awaiting trial on a charge of murder. It was apparently alleged against him that, while on such bail, he had been making 'offensive phone calls'.

Mr Eastman claims that his arrest was illegal for two distinct reasons, namely, that the arresting police did not have an original or complete warrant in their possession and that the whole process of arrest had constituted an abuse of process in that there had been deliberate and unjustifiable delay in executing any warrant and that that delay had been motivated by improper reasons. The affidavit discloses, however, that Mr Eastman is not at present held in custody under the authority of any warrant for his arrest. He has been and is held in custody pursuant to a series of orders made by magistrates of the ACT Magistrates Court. His claim is that his detention in custody pursuant to those orders was and remains illegal for the reason that his original arrest was illegal. For the purposes of an application for a writ of habeas corpus, however, the answer to that claim is that, on each occasion when the matter came before a magistrate of the ACT Magistrates Court, the learned magistrate was required to consider and determine whether an order could properly be made, and whether an order should be made, that Mr Eastman be remanded in custody and that, on each occasion, the magistrate made such an order. Apparently, none of the orders so made has been overridden by a subsequent bail order or has subsequently been set aside in appellate proceedings."

22 After remarking that habeas corpus is an important safeguard of liberty, remarks which I have already alluded to, Deane J continued as follows:

"It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application."

23 As in the case before Deane J there is nothing in the materials before me which provides an arguable basis for a finding that the order made by the District Court or the Court of Petty Sessions was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide a complete answer to Mr Hooker's present application.

24 The applicant applies for bail pursuant to O 57 r 4 to halt any further unlawful loss of liberty and so that the applicant may conduct research and have complete access to legal materials and law library information. The respondents submit that this Court does not have jurisdiction to grant bail to the applicant, whether pursuant to the Bail Act 1982 or to the inherent jurisdiction of this Court.

25 I do not need to determine that issue because I have decided that the applicant's detention is clearly lawful. He has no prospect of success on a writ of habeas corpus. There is no basis for issuing a writ referring the matter to the Court of Appeal. Accordingly the applications for a writ of habeas corpus and for bail are dismissed.